THAT, ALTHOUGH BARKER HAD BEHAVED BADLY AND SHOULD NOT AGAIN BE EXPOSED TO THE PRESSURE OF A LONG TRIAL, HIS FAILINGS WERE NOT SUCH THAT A TRIBUNAL, IF APPOINTED, WOULD RULE FOR HIS DISMISSAL. THE CJ DESIGNATE THOUGHT THAT BARKER'S CONDUCT WAS SUFFICIENT TO PUT PRESSURE ON HIM TO RESIGN, BUT NOT SUCH THAT A TRIBUNAL SHOULD
BE APPOINTED UNLESS AN ALLEGATION HE HAD RECENTLY HEARD ABOUT BARKER TALKING OUT OF TURN COULD BE PROVED. IN THAT CASE A TRIBUNAL, HOWEVER UNWELCOME, WOULD BE JUSTIFIED.
HIS
4. IN RESPONSE TO MY QUESTIONING ABOUT BARKER'S BEHAVIOUR SINCE THE TRIAL, THE CJ SAID THAT BARKER WAS NOW BEHAVING NORMALLY. CONDITION AND BEHAVIOUR WERE HOWEVER LIKELY TO DETERIORATE FOLLOWING HIS WIFE'S EXPECTED DEATH LATER THIS YEAR. THE CJ DESIGNATE AGREED GENERALLY BUT THOUGHT AN ADDITIONAL SIGNIFICANT FACTOR WAS THE FACT THAT BARKER'S FELLOW JUSTICES OF APPEAL HAD ALL (CJ THOUGHT MOST) MADE IT CLEAR THAT THEY HAD LOST CONFIDENCE IN HIM AND WERE UNWILLING TO SIT WITH HIM ON APPEAL CASES. ALTHOUGH NOT SUFFICIENT GROUNDS FOR HOLDING A TRIBUNAL, THIS WAS AN EXTREMELY SERIOUS SITUATION WHICH JUSTIFIED PUTTING PRESSURE ON BARKER TO RESIGN.
5. WE CONSIDERED RECENT ARTICLES IN THE HONG KONG LAW JOURNAL WHICH FOUND FAULT WITH BARKER'S HANDLING OF THE CARRIAN CASE AND HIS JUDGMENT AT THE END OF IT. ALTHOUGH THESE ARTICLES MEANT THAT THE MATTER NOW HAD A CONTINUING HIGH PROFILE IN THE MEDIA, THEY NEITHER ADDED TO, NOR SUBTRACTED FROM, THE OTHER QUESTIONS ALREADY CONSIDERED.
6. IN CONSIDERING WHAT ACTION TO TAKE, BOTH SIR D ROBERTS AND SIR T L YANG (THE FORMER MORE STRONGLY THAN THE LATTER) WERE AGAINST THE APPOINTMENT OF A TRIBUNAL. AFTER FURTHER DISCUSSION OF THE CASE, INCLUDING BOTH THE NEED TO MAINTAIN THE REPUTATION OF THE JUDICIARY AND TO DEAL HUMANELY WITH BARKER, BOTH SIR DENYS AND SIR T L AGREED THAT IT WOULD BE RIGHT TO PUT TO MR JUSTICE BARKER A PROPOSITION IN THE FOLLOWING TERMS:
(I) HE SHOULD RESIGN AT THE END OF HIS PRESENT AGREEMENT, I.E. AT THE END OF THE YEAR. MEANWHILE HE WOULD BE GIVEN NON-JUDICIAL WORK.
(II) THIS DELAYED RESIGNATION WOULD ENABLE HIM TO TRANSFER TO MORE FAVOURABLE PENSIONABLE TERMS WHICH WERE DUE TO COME INTO EFFECT THIS SUMMER. HE WOULD THUS BE ENTITLED TO BOTH A HIGHER LUMP-SUM PAYMENT ON RETIREMENT AND A REGULAR PENSION PAYMENT (SINCE HE IS ON CONTRACT TERMS HE WOULD NOT RECEIVE A REGULAR PENSION UNDER PRESENT ARRANGEMENTS). IF THE INTRODUCTION OF THE NEW ARRANGEMENTS WERE DELAYED HE WOULD BE ALLOWED TO REMAIN LONG ENOUGH TO TRANSFER.
7. FOLLOWING THIS MEETING THE CHIEF JUSTICE, WITH SIR T L YANG'S FULL SUPPORT, HAS AGAIN SPOKEN TO BARKER. THE LATTER HAS NOW WRITTEN TO ME OFFERING HIS RESIGNATION ON THE LINES DESCRIBED ABOVE. MIFT CONTAINS THE TEXT OF THE LETTER. A SCHEDULE, NOT TELEGRAPHED, CONTAINS DETAILS ABOUT LEAVE AND PASSAGE ARRANGEMENTS ETC PLUS AN UNDERTAKING TO MOVE OFF THE COURT OF APPEAL AT A TIME OF THE CJ'S CHOOSING.
8. I PROPOSE TO ACCEPT MR JUSTICE BARKER'S RESIGNATION. I BELIEVE THAT DELAYED RESIGNATION, COUPLED WITH NON-JUDICIAL DUTIES IN THE INTERIM, CONSTITUTES A REASONABLE SOLUTION TO THIS UNHAPPY CASE. IT IS ONE WHICH ENABLES US TO MAINTAIN THE REPUTATION OF THE